Citation Nr: 1507274
Decision Date: 02/19/15 Archive Date: 02/26/15
DOCKET NO. 13-07 399 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming
THE ISSUE
Entitlement to a rating in excess of 10 percent for L5-S1 spondylolisthesis (hereinafter, "low back disability").
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Reeder, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1973 to March 1977.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In January 2014 the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.
The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. Any future development or adjudication of the Veteran's case should take into account both the paper and electronic files.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran is seeking a higher rating for his service-connected low back disability. The Board finds that additional development is necessary prior to appellate review.
In an August 2012 VA treatment note, the care provider noted that the Veteran's back condition was worsening, and that he needed to decide what course of action he wished to pursue-physical therapy, private treatment, or referral to another VA facility. Subsequent treatment records and the testimony the Veteran provided during his January 2014 hearing indicate he decided not to seek private treatment, but that he elected to proceed with physical therapy, as well as additional treatment at another VA facility. However, records of that physical therapy and treatment are not associated with the claims file. Therefore, they must be obtained on remand.
Additionally, the Veteran last received a VA spine examination in November 2012. The record indicates that his condition may have worsened since that time. As such, the Board finds that an additional examination is necessary prior to evaluation of his claim. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).
Accordingly, the case is REMANDED for the following action:
1. Obtain all relevant VA treatment records for the Veteran from the Denver VA medical center (VAMC), including any physical therapy records. In addition, obtain updated records and any physical therapy records from the Cheyenne VAMC. If any requested records are not available, the claims file should be annotated as such and the Veteran notified of such.
2. After the above has been completed to the extent possible, schedule the Veteran for a VA examination to determine the severity of his service-connected low back disability. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted, including range of motion testing.
3. After the development requested above has been completed to the extent possible, the AOJ should again review the record. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).